Bombay HC’s Latest Ruling on John Doe Creates a Jurisprudence of Doubt

As our readers would recall, we had covered the issuance of two John Doe Orders by Justice Patel of the Bombay High Court that were circumscribed by robust safeguards a couple of weeks ago.

Justice Patel unequivocally recognized the proposition that John Doe orders must be based on concrete and precise information and must be narrowly tailored to block specific URLs in contradistinction to entire websites. After a round of cautionary views on this blog (here and here), he also put in place safeguards to ensure that the plaintiffs version of infringing links were fairly authenticated.

Unfortunately, as I noted in last week’s review, his latest order appears to fly in the face of his earlier progressive jurisprudence. In light of a more specific affidavit that was submitted by the counsel for the plaintiffs, he issued an order requiring the complete blocking of 110 websites and not the specific links or infringing portions. Some of the links blocked are to websites which appear to be similar to Youtube and Vimeo, in that they host user uploaded videos/content.

For anyone who may have thought that this issue has nothing more than academic significance and does not affect real businesses in a very concrete and specific way, a recent comment by one of our readers, Aadarsh Agarwal, to my post would be worth examining.

I am quoting his entire comment here since it is completely on point.

Thank you for your articles on John Doe orders for blocking of websites. We have been on the receiving side of one such order recently.

We are an online retailer of DVDs at http://www.induna.com
since 2007. We sell only original DVDs released by the content owners. We have never indulged in any nature of piracy ever. As a matter of fact movie
piracy affects our business adversely. We regularly put up pages in our website for forthcoming DVDs, like all online DVD retailers do. This is to let
the customers know what is coming in future, and also so that they may sign-up for alerts so that they get notified when the original DVDs becomes available.
Producers of a forthcoming Bollywood movie obtained a court order against some 400 odd websites/URLs, who are either hosting/enabling or whom they suspect
might host/enable the downloading of their movie. Our URL for this movie’s DVD was included in this order.

Several of the ISPs, instead of blocking the specific URL of ours, went ahead and blocked our entire website. Further we received a DMCA Complaint Notice from Google who have removed our URL of the movie from their search results

We were able to find out about the existence of this court order only upon much looking up on the internet when we found that our website was not being
accessible through several ISPs. Some of the ISPs have put a block to our entire website. Some have blocked only the specific URL. And then there are some who have not implemented any block/ban. In some cases there is a display of a message, which says that this website/URL has been blocked due to a court order.

Going to the courts to get relief looks like a daunting task to us. We called up the producers and the two agencies whom they had hired to detect the websites/URLs which were indulging in piracy of their movies. But these were not of much help. One of the agencies accepted that there has been a mistake and they did say that they would be writing to Google to retract the DMCA complain (sic) against our URL. We are yet to hear from the other agency.

We are not against John Doe orders. We think it is an effective tool to curb piracy. But we feel more checks and balances needs to be introduced to minimize the chances of innocent people getting caught in the endeavour of movie producers to prevent piracy of their content. I’m sharing below some points I think we could consider which such orders are passed:

1) It is apparent that the agencies hired by the movie producers supply a list of Websites/URLs in haste without proper investigation. They do themselves admit that they employ an automated ‘crawler’ to do the job. The courts should make sure that every single website/URL in these lists have been double checked by these agencies to ensure that innocent parties do not suffer. Also, such orders permit the inclusion of websites/URLs whom they suspect might indulge in piracy in future. In such cases it will be really good if the orders start stressing that they may do so only if they have ‘convincing’ reasons to suspect that these websites/URLs may indulge in piracy in future.

2) There should be the presence of a redressal body, to which any person whose website/URL which has been wrongly included in any such order, may put their defence and be excluded from it.

3) ISPs should be asked to put up copies of all such block/ban orders on their websites so that the affected persons know exactly why their website/URL has been banned/blocked.

4) ISPs sometimes block the entire website even when the order is to block a single URL. I’m not sure why they do it, but it happened in our case with more than one ISP. It would be great if the Judges take notice of it and make sure that the ISPs do not exceed the brief of the order.

5) And also, any producers who obtain this kind of orders should be made liable for compensation if an innocent person suffers because of such an order.

I’m sure there will be a way out, but right not (sic) we are still clueless on how we can get ourselves excluded from the order in which our URL was mentioned.

I think 3 key points emerge from the views enunciated by Aadarsh.

First, no one would cavil at the broad proposition that curbing online piracy is indispensable for imbuing the rights of copyright holders with real meaning and substance in the virtual world. However, when a tool that is designed to achieve this goal provides a legal foundation for the shutting down of legitimate businesses whose only fault is that they happen to be in the business of disseminating copyrighted content, albeit in a perfectly legitimate way, there is an urgent need for deep and meaningful introspection.
To this end, Justice Patel’s laudable attempt at setting right the tendency of courts to sanction the misuse of these orders, even if subsequently undermined by a contradictory order from him, is praiseworthy.

This brings me to my second point. As Aadarsh notes, anti-piracy agencies that are hired by movie producers use automatic crawlers to identify websites/URLs containing pirated material whose results are very often not fully accurate or reliable. Further, since these agencies are commissioned and paid by these selfsame movie producers, they have a perverse incentive to provide information that serves the sole function of reinforcing the beliefs of producers as regards which websites ought to be blocked and providing information that helps these producers obtain the broadest permissible legal remedy in the prevailing circumstances. This is identical to large and powerful businesses gaming the system for prior environmental clearance by hiring agencies which are supposed to provide an objective analysis of the potential environmental impact of the proposed project, but in fact merely put forth material that helps these businesses obtain clearances in an expeditious timeframe.

Lest I be accused of nitpicking and focusing on problems instead of offering solutions, I should admit that this approach is significantly better than relying on the ipse dixit of plaintiffs while crafting John Doe orders. That being said, the judiciary must give serious consideration to the need for a neutral and objective mechanism to obtain reliable, precise and authentic information that can serve as the basis for narrowly tailored John Doe orders. Prof. Basheer has written illuminatingly about the possible approaches that can be pressed into service for this purpose here.

This, finally, brings me to my third and arguably most important point. If there is anything worse than a widely worded John Doe order, I would argue that it is the lack of clarity in the law. More specifically, if a legitimate online business knows that it is likely to be the victim of a John Doe order, it can formulate suitable strategies in advance for ensuring that its website does not get blocked, for instance by obtaining a prior written undertaking from the movie producer. However, when one cannot predict with any degree of certitude how a court is likely to craft a John Doe order, the fate of a legitimate online business, such as Aadarsh’s, is likely to remain in suspended animation.

We would do well to remember that in the sphere of internet freedoms, we cannot afford a jurisprudence of doubt.